Citation Nr: 0313928
Decision Date: 06/25/03 Archive Date: 06/30/03
DOCKET NO. 96-23 384 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to monetary benefits for birth defects in the
veteran's children, claimed as a residual of the veteran's
exposure to Agent Orange during service.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Service
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
D. Havelka, Counsel
INTRODUCTION
The veteran's active military service extended from August
1966 to February 1972.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 1996 hearing officer decision
by the Department of Veterans Affairs (VA) Regional Office
(RO) in Atlanta Georgia. That decision, in part, denied
entitlement to monetary benefits for birth defects in the
veteran's children, claimed as a residual of the veteran's
exposure to Agent Orange during service.
The case was previously before the Board in October 1998 and
November 2000, when it was remanded to request additional
information from the veteran. The Board now proceeds with
its review of the appeal.
FINDINGS OF FACT
1. VA has obtained all relevant evidence necessary for an
equitable disposition of the veteran's appeal.
2. The veteran had active service in Vietnam during the
Vietnam era.
3. The veteran is presumed to have been exposed to an
herbicide agent, Agent Orange, during his service in Vietnam.
4. The veteran has submitted no medical evidence documenting
any birth defects in his children.
5. There is no evidence that the veteran's children have
been diagnosed with spina bifida.
CONCLUSION OF LAW
With respect to the claim for entitlement to monetary
benefits for birth defects in the veteran's children, claimed
as a residual of the veteran's exposure to Agent Orange
during service, no error of fact or law has been alleged for
which relief or entitlement may be granted. The claim is
legally insufficient. 38 U.S.C.A. §§ 1805, 5107(b) (West
2002); 38 C.F.R. § 3.814 (2002); Sabonis v. Brown, 6 Vet.
App. 426 (2002).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
There has been a significant change in the law during the
pendency of this appeal. On November 9, 2000, the President
signed into law the Veterans Claims Assistance Act of 2000
(VCAA), 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107,
5126 (West 2002). Among other things, this law eliminates
the concept of a well-grounded claim, redefines the
obligations of VA with respect to the duty to assist, and
supersedes the decision of the Court in Morton v. West, 12
Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No.
96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order),
which had held that VA cannot assist in the development of a
claim that is not well grounded. This change in the law is
applicable to all claims filed on or after the date of
enactment of VCAA, or filed before the date of enactment and
not yet final as of that date. 38 U.S.C.A. §§ 5100, 5102,
5103, 5103A, 5106, 5107, 5126 (West 2002). See also
Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law
also imposes a significant duty to assist the appellant with
their claim and to provide them notice of evidence needed to
support the claim. More recently, new regulations were
adopted to implement the VCAA. See 38 C.F.R §§ 3.102,
3.156(a), 3.159 and 3.326(a)(2002).
First, VA has a duty to notify the appellant and his
representative, if represented, of any information and
evidence needed to substantiate and complete a claim. 38
U.S.C.A. §§ 5102, 5103 (West 2002); 38 C.F.R. §
3.159(b)(2002). Information means non-evidentiary facts,
such as the veteran's address and Social Security number or
the name and address of a medical care provider who may have
evidence pertinent to the claim. 38 C.F.R. §
3.159(a)(5)(2002).
Second, VA has a duty to assist the appellant in obtaining
evidence necessary to substantiate the claim. 38 U.S.C.A. §
5103A (West 2002); 38 C.F.R. § 3.159(c)(2002). With respect
to this duty to assist the veteran in obtaining evidence, the
VCAA requires that VA notify the claimant which evidence, if
any, will be obtained by the claimant and which evidence, if
any, will be retrieved by VA. Quartuccio v. Principi, 16
Vet. App. 183 (2002) (holding that both the statute, 38
U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159,
clearly require the Secretary to notify a claimant which
evidence, if any, will be obtained by the claimant and which
evidence, if any, will be retrieved by the Secretary).
In this case, VA informed the appellant of the evidence
needed to substantiate the claim in letters dated December
1998 and December 2002. The latter letter also informed the
appellant of VA's duty to assist the appellant and which
party would be responsible for obtaining which evidence. The
RO's letter to the veteran dated December 19, 2002,
specifically requested the veteran to "provide a list of the
specific birth defects in your children and provide a list
containing the names of all health care professionals and/or
facilities (private and governmental) where the children had
been treated for the claimed birth defects." There was no
response to this request. The Board concludes that the
discussion therein adequately informed the appellant of the
information and evidence needed to substantiate his claim,
and of VA's duty to assist in obtaining evidence thereby
meeting the notification requirements of the VCAA.
As discussed above, VA has fulfilled its duties to inform and
assist the appellant on his claim. Accordingly, the Board
can issue a final decision because all notice and duty to
assist requirements have been fully satisfied, and the
appellant is not prejudiced by appellate review. A remand or
further development of the claim would serve no useful
purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546
(1991) (strict adherence to requirements in the law does not
dictate an unquestioning, blind adherence in the face of
overwhelming evidence in support of the result in a
particular case; such adherence would result in unnecessarily
imposing additional burdens on VA with no benefit flowing to
the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994)
(remands which would only result in unnecessarily imposing
additional burdens on VA with no benefit flowing to the
veteran are to be avoided). VA has satisfied its duties to
inform and assist the appellant in this case. Further
development and further expending of VA's resources are not
warranted. Any "error" to the appellant resulting from
this Board decision does not affect the merits of his claims
or her substantive rights, for the reasons discussed above,
and is therefore harmless. See 38 C.F.R. § 20.1102 (2002).
Having determined that the duties to inform and assist the
appellant have been fulfilled, the Board must assess the
credibility, and therefore the probative value of proffered
evidence of record in its whole. Owens v. Brown, 7 Vet. App.
429, 433 (1995); see Elkins v. Gober, 229 F.3d 1369 (Fed.
Cir. 2000); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir.
1997); Guimond v. Brown, 6 Vet. App. 69, 72 (1993); Hensley
v. Brown, 5 Vet. App. 155, 161 (1993).
II. Monetary Benefits for Birth Defects
The veteran claims that he was exposed to Agent Orange during
active service and that as a result of this exposure his
children were born with birth defects. Initially the Board
notes that the evidence of record clearly shows that the
veteran served in combat in Vietnam. The governing law
provides that a "veteran who, during active military, naval,
or air service, served in the Republic of Vietnam during the
period beginning on January 9, 1962, and ending on May 7,
1975 shall be presumed to have been exposed during such
service to an herbicide agent . . . unless there is
affirmative evidence to establish that the veteran was not
exposed to any such agent during that service." 38 U.S.C.A.
§ 1116(f) (West 2002). As such, the veteran is presumed to
have been exposed to Agent Orange during his combat service
in Vietnam.
The veteran has made vague allegations that his children were
born with birth defects which were the result of his in-
service Agent Orange exposure. At a November 1995 hearing
before an RO hearing officer the veteran testified that: his
oldest child was born with a hip deformity, his middle child
was born with an abnormality in bone formation, and that his
youngest child had sinus and allergy disorders. He further
testified that his grandchildren had to "have tubes put in
their ears."
According to the applicable law and regulations, VA shall pay
a monthly allowance, based upon the level of disability, to
or for a child who has been determined to be suffering from
spina bifida and who is a child of a Vietnam veteran. 38
U.S.C.A. § 1805(a) (West 2002); 38 C.F.R. § 3.814(a)(2002).
Within the meaning of this law "Spina bifida" means any
form and manifestation of spina bifida except spina bifida
occulta. 38 U.S.C.A. § 1802 (West 2002); 38 C.F.R. §
3.814(c)(3)(2002). The Board notes that this is the only
birth defect which warrants the award of monetary benefits
based on the herbicide exposure of the veteran.
In a precedent opinion, VAOPGCPREC 5-99, the VA General
Counsel held that 38 U.S.C.A. § 1802, Chapter 18 of Title 38,
United States Code, applies to all forms of spina bifida
other than spina bifida occulta, and that for purposes of
that chapter the term "spina bifida" refers to a defective
closure of the bony encasement of the spinal cord but does
not include other neural tube defects such as encephalocele
and anencephaly. The Board is bound by the precedent
opinions of the VA General Counsel. 38 U.S.C.A. §
7104(c)(West 2002).
In the present case, VA has requested that the veteran submit
evidence showing the exact nature and medical diagnoses of
the birth defects he claims were caused in his children by
Agent Orange exposure. The RO has specifically asked for
this information from the veteran in letters dated December
1998 and December 2002. The appellant has failed to submit
any of the evidence or information requested.
The preponderance of the evidence is against the claim. The
veteran is a "Vietnam veteran" within the meaning of the
applicable law and regulations. He is presumed to have been
exposed to Agent Orange during service. However, there is a
complete absence of medical evidence showing birth defects
that the veteran claims his children have, and there is no
medical evidence showing that they have spina bifida as
contemplated by the applicable law and regulations. 38
U.S.C.A. § 1802 (West 2002); 38 C.F.R. § 3.814(c)(3)(2002).
Therefore, the appellant does not meet the requirements set
forth. The United States Court of Appeals for Veterans Claims
has held that in a case where the law is dispositive of the
claim, the claim should be denied because of lack of
entitlement under the law. Sabonis v. Brown, 6 Vet. App.
426, 430 (1994), appeal dismissed, 56 F.3d 79 (Fed. Cir.
1995). As there is no competent medical evidence showing
that the veteran's children have birth defects, specifically,
spina bifida, there is no basis upon which VA benefits can be
granted for a child suffering from spina bifida under 38
U.S.C. § 1805 and 38 C.F.R. § 3.814. The claim is without
legal merit and must therefore be denied.
ORDER
Entitlement to monetary benefits for birth defects in the
veteran's children, claimed as a residual of the veteran's
exposure to Agent Orange, including under the provisions of
38 U.S.C.A. § 1805, is denied.
____________________________________________
BETTINA S. CALLAWAY
Veterans Law Judge, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.